Opinion
No. 108,629.
2013-04-12
In the Matter of B.R.F.
Appeal from Shawnee District Court; Joseph D. Johnson, Judge. Michael E. Francis, of Topeka, for appellant. Chadwick J. Taylor, district attorney, and Jodi Litfin, assistant district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Joseph D. Johnson, Judge.
Michael E. Francis, of Topeka, for appellant. Chadwick J. Taylor, district attorney, and Jodi Litfin, assistant district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., GREEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
B.R.F. appeals from the judgment of the trial court imposing his adult sentence following revocation of his extended jurisdiction juvenile sentence. B.R.F. contends that the trial court prematurely revoked his juvenile sentence because B.R.F. still had time to complete the sex offender treatment program. B.R.F. also argues that the trial court erred in failing to calculate his release date. For the reasons stated below, we affirm the trial court's decision.
On January 28, 2008, B.R.F., who was 15 years old at the time, was charged with four counts of aggravated criminal sodomy with a child under the age of 14. B.R.F.'s case was originally set for trial on April 14, 2008, but was continued multiple times. Then, on June 22, 2010, B.R.F. pled no contest to three counts of aggravated criminal sodomy in exchange for the fourth count being dismissed. In May 2010, B.R.F. was granted extended jurisdiction juvenile prosecution as provided in K.S.A.2011 Supp. 38–2347(a)(4). In that process, the offender remains in the juvenile justice system but receives a contingent adult sentence that is stayed unless the young person fails to comply with terms of the juvenile adjudication. If the juvenile offender succeeds, he or she avoids an adult felony conviction and the legal and practical disabilities accompanying that sort of criminal record. But failure to comply with the juvenile sentence lifts the stay on the adult sentence and places the juvenile into the adult criminal justice system.
The trial court sentenced B.R.F. to a juvenile sentence as well as an adult sentence. For his adult sentence, B.R.F.'s criminal history category was H and he was sentenced to 186 months in prison with 36 months of post-release supervision for each of the three counts. The sentences for the second and third count were to run consecutive to count one. For his juvenile sentence, B.R.F. was classified as a violent two offender and sentenced to the custody of the juvenile justice authority (JJA) until age 22 1/2 years with aftercare lasting until age 23. The court further directed that B.R .F. complete sex offender treatment and that he follow all recommendations of the treatment provider.
The procedures for an extended jurisdiction juvenile adjudication are set out in K.S.A.2011 Supp. 38–2364. Upon the juvenile's plea to or a court's finding of guilt on the offense, the court imposes one of the various options of juvenile punishment set forth in K.S.A.2011 Supp. 38–2361. At the same time, the juvenile court shall “impose an adult criminal sentence, and the adult sentence “shall be stayed on the condition that the juvenile offender not violate the provisions of the juvenile sentence and not commit a new offense .” K.S.A.2011 Supp. 38–2364(a)(2).
If the juvenile violates the conditions of the juvenile sentence, the juvenile court may immediately lift the stay—meaning the adult sentence will be carried out—and, if consistent with the adult sentence, order the offender into the custody of the Department of Corrections. K.S.A.2011 Supp. 38–2364(b). The juvenile is entitled to a hearing to challenge the alleged violations. If the court finds a violation of the conditions, “the court shall revoke the juvenile sentence and order the imposition of the adult sentence previously ordered [.]” K.S.A.2011 Supp. 38–2364(b). At that point, the juvenile court's jurisdiction ends. In turn, “[t]he ongoing jurisdiction for any adult sanction, other than the commitment to the department of corrections, is with the adult court .” K.S.A.2011 Supp. 38–2364(b).
As a part of B.R.F.'s sentence, he was ordered to enroll and complete a sex offender treatment program. In October 2010, B.R.F. was admitted to into the SOAR unit which is an intensive sex offender unit for treatment. B.R.F. showed no interest in completing the sex offender program for the first few months. Then, in December 2010, B.R.F. began to take ownership for his behavior and was able to complete some of the stages of the treatment. B.R.F.'s progress was derailed in April 2011 when he was removed from the SOAR program after receiving too many disciplinary infractions. While B.R.F. was in the custody of the JJA, he received nine disciplinary infractions due to his disruptive and aggressive behavior.
B.R.F. was scheduled to be released from JJA on May 27, 2011. During his prerelease conference on April 26, 2011, B.R.F. was informed that he still needed to complete the sex offender treatment. B.R.F. made it clear that completing the program was not a priority to him and that he felt he would be too busy when he was released to complete the program. When B.R.F. was released from JJA custody, he had not yet been placed with a community-based sex offender treatment program.
Three days before his release date, the State moved to revoke the extended juvenile jurisdiction and requested the trial court to impose B.R.F.'s adult sentence. On September 15, 2011, the trial court held a hearing to consider the State's motion to revoke the extended juvenile jurisdiction. The motion alleged that B.R.F. had failed to complete the sex offender program and that he had been removed from the program due to his aggressive and threatening behavior. The State further alleged that B.R.F. had failed to follow the recommendations of the treatment provider.
At the hearing, Thomas Ayers, a community corrections worker, who was assigned to supervise B.R.F., testified that B.R.F. was not focused on completing the sex offender program and that he was more focused on getting out of custody and working on cars. Ayers further testified that B.R.F. had a difficult time admitting that he had committed the crimes for which he was convicted, thus preventing him from progressing through the program.
Dr. Jennifer Pealer testified about the different stages of the sex offender program. Dr. Pealer testified that B.R.F. was given a checklist of things he needed to accomplish to complete the program. Dr. Pealer further testified that B.R.F. had failed to complete the checklist and that B.R.F. had failed to successfully complete any of the four stages of the sex offender program. Dr. Pealer stated that it appeared that B.R.F. was more focused on his car business, his family, and getting his GED rather than completing the sex offender program. Dr. Pealer further testified that B.R.F. was removed from the program because of his behavioral issues. Dr. Pealer testified that B.R.F. had failed to complete the sex offender program and that he had failed to follow the recommendations he had been given while in the program.
B.R.F. testified that he had completed more work on the checklist than Dr. Pealer had indicated. B.R.F. further testified that he had difficulty completing his assignments because he had a learning disability that made it difficult to read.
The trial court issued a memorandum decision and found that B.R.F. had violated the conditions of his juvenile sentence, and therefore, his juvenile sentence was being revoked. The trial court held that the State presented credible evidence that B.R.F. had failed to put forth the effort to complete the sex offender treatment and had failed to comply with the recommendations of the sex offender treatment provider, both of which the trial court had ordered as conditions of B.R.F.'s sentence. The trial court then ordered B.R.F. to serve his adult sentence. B.R.F. timely appealed. Did the trial court err in finding that B.R.F. had violated the conditions of his juvenile sentence?
On appeal, B.R.F. argues that the trial court erred in finding that he had violated the conditions of his juvenile sentence. Specifically, B.R.F. disputes the allegation that he had failed to complete his sex offender program. B.R.F. maintains that the trial court prematurely revoked his juvenile sentence because he still had time to complete the sex offender program even after he was released from JJA.
In response, the State contends that it established, by a preponderance of the evidence, that B.R.F. had violated the terms of his juvenile sentence by failing to complete the sex offender program and by failing to follow the recommendations of the treatment provider. The State maintains that the trial court did not specifically find that B.R.F. violated his sentence by failing to complete the sex offender program before his release. The State argues that the trial court simply held that B.R.F. had failed to put forth the effort to complete the program and that he had failed to follow the recommendations of the treatment program provider.
Under K.S.A.2011 Supp. 38–2364(b), “after the hearing, if the court finds by a preponderance of the evidence that the juvenile committed a new offense or violated one or more conditions of the juvenile's sentence, the court shall revoke the juvenile sentence and order the imposition of the adult sentence.” B.R.F.'s argument that he still had time to complete the sex offender program even after he was released from JJA advances an irrelevant point. Because K.S.A. 38–2364(b) does not require the trial court to delay revoking a juvenile sentence for violating conditions of his or her sentence, B.R.F. is arguing an irrelevant proposition.
As a result, the issue before this court is whether B.R.F. violated the provisions of his juvenile sentence, which were to complete the sex offender program and to follow the recommendations of the treatment provider. Therefore, we need to determine whether the State established, by a preponderance of the evidence, that B.R.F. violated the conditions of his juvenile sentence.
As stated earlier, under K.S.A.2011 Supp. 38–2364(b), the trial court has the authority to immediately revoke the stay of the adult sentence and to order the juvenile into custody “when [the juvenile] has violated one or more conditions of the juvenile sentence or is alleged to have committed a new offense.” There are no allegations that B.R.F. committed a new crime, so we must determine only whether he violated one or more conditions of his juvenile sentence.
Following an evidentiary hearing, the trial court determined that B.R.F. had violated the conditions of his juvenile sentence based on the evidence presented. The trial court found that B.R.F. had failed to put forth the necessary effort to complete the sex offender program and that he failed to follow the recommendations from the treatment provider. The trial court further found that B.R .F. chose to focus his attention and efforts elsewhere and that it was his personal choice not to follow the recommendations of the treatment provider. Thus, the trial court revoked B.R.F.'s juvenile sentence and ordered imposition of his adult sentence.
Under the preponderance of the evidence standard, it is readily apparent that the trial court correctly determined that B.R.F. had violated the conditions of his juvenile sentence. Instead of arguing that he still had time to complete the sex offender program, B.R.F. needed to show that he was successfully working toward completing the program. Nevertheless, the testimony showed that B.R.F. showed no interest in completing the program and that he was not following the recommendations of the treatment providers. It is well established that B.R.F. knew he had to complete the sex offender program. Both Ayers and Dr. Pealer discussed this fact with B.R.F. It is also readily apparent that B.R.F.'s focus was not on completing the program. Moreover, B.R.F.'s disruptive behavior also hindered his ability to complete the program. B.R.F. was removed from the program for threatening a staff member. This was in addition to the nine other disciplinary infractions B.R.F. received due to his disruptive and aggressive behavior.
Based on the facts above, it is clear that B.R.F. failed to put forth the effort to complete the sex offender program and that he failed to follow the recommendations of the program providers, both of which were conditions of his sentence. Therefore, B.R.F. was in violation of his juvenile sentence and the trial court properly ordered him to serve his adult sentence. Did the trial court err in failing to calculate B.R.F.'s release date?
Next, B.R.F. argues that the trial court erred when it failed to calculate his release date as determined by the JJA. B.R.F. maintains that he should have remained in the custody of the JJA until he was 22 1/2 years old.
In contrast, the State first contends that the trial court correctly held that it did not need to address the release date of B .R.F. because it was imposing his adult sentence on him. Alternatively, the State argues that if our court chooses to address the calculation of B.R.F.'s release date, that the JJA correctly calculated the date and released B.R.F. before he was 22 1/2 because he had received credit for time he had already served in accordance with K.S.A.2011 Supp. 38–2372.
In the trial court's memorandum decision, the trial judge stated:
“The Court has determined that Respondent [B.R.F.] violated conditions of his juvenile sentence prior to his release from the correctional complex; therefore, the Court further determines that it is not necessary to address the issue of the calculation of Respondent's release date.”
First, it should be noted that this issue is moot because even if B.R.F.'s position is correct, this court is incapable of providing B .R.F. with any meaningful relief. See State v. Aleman, 16 Kan.App.2d 784, 786, 830 P.2d 64,rev. denied 251 Kan. 940 (1992) (“An appellate court will not render opinions in appeals which present moot issues or where the judgment could have no practical effect on a then-existing controversy.”).
Even if B.R.F. should have remained in the custody of the JJA until he was 22 1/2 years old, the trial court determined that he had violated the conditions of his juvenile sentence before his release date. Once the court held that B.R.F. had violated his juvenile sentence, the juvenile court's authority over B.R.F. ceased, the stay on his adult sentence was lifted, and he was ordered to serve his adult sentence. Therefore, even if B.R.F. should not have been released before he was 22 1/2, it would not change the fact that he violated the conditions of his juvenile sentence and is now required to serve his adult sentence. Thus, the trial court did not err in failing to address this issue below because it was no longer an issue.
Moreover, the State is correct in arguing that the JJA correctly reduced B.R.F.'s sentence in accordance with K.S.A.2011 Supp. 38–2372. K.S.A.2011 Supp. 38–2372 states in relevant part:
“[F]or the purpose of computing juvenile's sentence and release, eligibility and conditional release dates thereunder, that such sentence is to be computed from a date, to be specifically designated by the court in the sentencing order. Such date shall be established to reflect and shall be computed as an allowance for the time which the juvenile has spent incarcerated pending the disposition of the juvenile's case. In recording the date of commencement of such sentence, the date as specifically set forth by the court shall be used as the date of sentence and all good time calculations authorized by law are to be allowed on such sentence from such date as though the juvenile were actually incarcerated in a juvenile correctional facility. Such credit shall not reduce the minimum term of incarceration authorized by law for the offense of which the juvenile has been adjudicated.”
Thus, the JJA correctly gave B.R.F. credit for time he had already served which reduced his time spent at JJA.
Affirmed.